General Discovery:

  • Complaint must be served within six (6) months after filing;

  • 20 days to file answer after service unless extension granted by party or court;

  • Rule 35 examinations are allowed for good cause. No limit on the number of IMEs in any given case;

  • Admissions can be deemed admitted after motion filed;

  • Defense counsel may conduct ex parte interviews of treating physicians – although this is discouraged by this office.

  • No Initial Disclosures;

  • Written discovery largely governs the initial phase of the discovery process;

  • Motions to compel are common;

  • Trial dates are set at the outset of each case and all discovery deadline dates are then backed out from the trial date (each court has different time limits for pretrial disclosures);

  • Trial dates are not easily moved because the judiciary is graded harshly if they do not clear the case from their docket within about 18 months;

  • No limits on deposition hours;

  • Experts are frequently (or nearly always) deposed;

  • There is no requirement to disclose information that is not requested in discovery. For example, if the Plaintiff does not request a list of experts and opinions, the opposing party is not required to identify those individuals or produce reports until the final pre-trial conference.

Statutory Cap On General Damages:

  • The legislature has limited recovery of general damages by statute and it is currently just over $342,030.36;

  • This cap is adjusted up or down each year in accordance Idaho Industrial Commission regulations;

  • Jury is not informed of the cap;

  • Does not apply to:

  • Causes of action arising out of willful or reckless misconduct,

  • Causes of action arising out of an act or acts which the trier of fact finds beyond a reasonable doubt would constitute a felony under state or federal law. I.C. § 6-1603.

  • We frequently see cases pled as “reckless” rather than as “negligence” as a way to circumvent the cap. The issue of whether an act is “reckless” is a jury question rather than one to dismiss on summary judgment.

Fault Allocation/Comparative Negligence:

  • “Individual” Rule of Comparative negligence – Each defendant’s negligence is compared separately with the plaintiff’s in determining whether plaintiff may recover; Stated another way, plaintiff must prove that any given defendant’s negligence was greater than that of the Plaintiff

  • Joint and Several Liability abolished with a few narrow exceptions: (1) when a person is acting as an agent or servant of another; or (2) where parties were “acting in concert” (pursuing a common plan or design which results in the commission of an intentional or reckless tortious act. I.C. § 6-803(5).

  • Applies when parent of minor child (under 18) signs the driver license application. Exception applies, however, if there is liability insurance in place for the vehicle. I.C. § 49-2417.

  • Non-Parties can (and are) placed on the special verdict form to determine apportionment of fault.

  • Dram ShopAct – comparative negligence applies in these cases. I.C. § 23-808.

Statutes Of Limitation:

  • Bodily Injury 2 years I.C. § 5-219.

  • Property Damage 3 years I.C. § 5-218.

  • Fraud 3 years from discovery of facts constituting fraud. I.C. § 5-218.

  • Contracts

  • Oral Contracts 4 years I.C. § 5-217.

  • Written Contracts 5 years I.C. § 5-216.

  • Products Liability 2 years I.C. § 6-1403.

  • Statutes of Repose

  • General Tort 6 years. I.C. § 5-230.

  • Construction 6 years I.C. § 5-241.

  • Products Liability 10 years. I.C. § 6-1403

  • Against Decedent’s Estate 3 years unless earlier barred by SOL. I.C. § 6-1403. May, however, be pursued beyond the SOL, but only if there are insurance proceeds available and limited thereto.

Jury Composition and Rules:

  • Juries are typically composed of 12 jurors;

  • To render a verdict, ¾ (or 9 out of the 12) of the jurors muse agree on each special verdict line to render a favorable verdict for plaintiff.

Collateral Source Rule:

  • Sources of compensation from private, group, or governmental sources are deducted from the verdict with some exceptions. I.C. § 6-1606.

  • Medicare writedowns and other insurance writedowns are a deductible collateral source.

  • These collateral sources are deducted post-verdict.

Mandated Minimum Policy Limits For Motor Vehicle Operation:

  • Minimum Limits 25/50/15 I.C. § 49-1229, 49-117(18).

Minor Settlement:

  • Required on all claims in excess of $10,000;

  • Two principles are important to remember: (1) a Guardian or conservator must be appointed by the Court which will authorize that person to sign the release for insurer and insured; and (2) Court approval is required. I.C. § 15-5-103.

Attorney Fee Claims:

  • I.C. § 12-120(4) – In personal injury actions where the amount of damages is less than $35,000 a party may recover attorney’s fees if:

  • A written demand (with very specific requirements) for payment of the claim and a statement of the claim was served upon the defendant’s insurer,

  • Not less than 60 days before the commencement of the action


  • If defendant tenders to the plaintiff, prior to the commencement of the lawsuit, an amount at least equal to ninety percent (90%) of the amount awarded to the plaintiff. In this case, no attorney fee claim is/can be awarded.

  • These claims are often mediated before discovery commences because the attorney’s fee claim could overtake and consume the original value of the initial claim.

  • This provision is an excellent incentive to dispose of low dollar claims.


  • PIP is not required coverage;

  • PIP subrogation is permissible if stated in the policy;

  • Medpay may be offered and Medpay subrogation is permissible.

Dog bite liability:

  • No strict liability;

  • Follows “one bite” rule;

  • Often the legal argument is based on “negligence per se”, which has the same or similar effect as strict liability. Typically, local ordinances are relied upon (i.e. leash laws, regulations requiring dogs to be controlled or in house or in an enclosed yard.;

  • Comparative fault of plaintiff permissible.

UM/UIM Claims:

  • UM must be offered, but can be rejected by the insured if done in writing and is clear I.C. § 41-2502.

  • Anti-Stacking insurance policies are valid;

  • UM arbitration provisions are valid and enforceable;

  • If the BI limit is the same as the UM/UIM limit, the insured cannot collect,

  • Insurer is entitled to offset the liability payment against the UIM limit;

  • In a UM claim alleging a “Phantom vehicle”, policy language requiring evidence of contact is enforceable;

  • Pay undisputed amounts of all UM/UIM claims – This will be our advice in every case.

Miscellaneous provisions:

  • Seat belt usage (or non-usage) is not permissible to prove comparative fault or failure to mitigate damages;

  • Payment of a traffic infraction fine by mail without entry of a guilty plea is an admission and admissible in subsequent civil action;

  • Family Exclusion is permissible;

  • Punitive damages are covered by the policy – unless explicitly excluded by the applicable insurance policy;

  • Punitive damages cannot be plead in the primary complaint; rather, the Plaintiff is required to make an evidentiary showing of sufficient evidence after conducting discovery. Typically, there is an evidentiary or quasi-evidentiary hearing on the strength of the evidence and the Court makes this preliminary determination. I.C. § 6-1604.

  • If any portion of an insured’s claim (i.e. first party claim) is not disputed, the insurer may have the obligation to pay the undisputed amount of the claim; in fact, we will always advise to issue this payment because it is a first party claim and because it is a showing of good faith;

  • Prejudgment interest on damages that are liquidated or ascertainable by a mathematical process (Non-BI claims);

  • No prejudgment interest allowed for medical special damages for personal injuries in a motor vehicle accident; however, if Plaintiff serves a written demand for settlement, then prejudgment interest begins to accrue.


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